AJIT MAHATA Vs. JOTINDRA NATH MAHATA

JUDGEMENT

(1.) This is an appeal challenging the Judgement and Decree passed by the learned Additional District Judge, 4th Court at Paschim Medinipur in Title Appeal No. 130 of 2007 on 25th February, 2008 reversing the Judgement and Decree passed by the learned Civil Judge (Junior Division), 3rd Court at Paschim Medinipur in Title Suit No. 77 of 1997 on 27th August, 2007. The plaintiff of the original suit is the appellant before this Court.

(2.) The plaintiff/appellant instituted Title Suit No. 77 of 1997 against the defendants who are his full brothers. It is alleged in the plaint that the suit property described in schedule 'ka' of the plaint is a piece and parcel of 'kha' schedule property. 'Kha' schedule property is described as land comprised in plot no. 260/507 of khatian no. 176 of mouza - Dengasole' within P.S. - Salboni, undivided Medinipur measuring about 1.02 decimal of land. Out of the said 1.02 decimal of land 'ka' schedule is the disputed property (hereafter described as suit property) measuring about 80 decimal of land. According to the plaintiff/appellant, Medinipur Zamindari Company Ltd. was the original owner of 'kha' schedule property. On or about 17th January, 1952, the said Medinipur Zamindari Company settled 80 decimal of land (suit property) in favour of the plaintiff. The plaintiff accepted the said settlement and subsequently executed 'kabulyat' on 20th February, 1953 in favour of the said Medinipur Zamindari Company Ltd. The said 'kabulyat' was duly registered. Since the date of settlement the appellant is in possession of the suit property. On or about 1404 B.S. corresponding to 1997 AD the defendants being the plaintiff's own brothers started disturbing the plaintiff in his peaceful possession over the suit property. When the plaintiff asked the defendants about the reason for causing such obstruction they disclosed that the suit property was recorded in equal share in R. S. Record of rights in the names of both the plaintiff as well as defendants. The defendants, therefore, claimed equal share of the suit property on the basis of such Record of rights. It was pleaded by the plaintiff that the entries in R. S. Record of rights in respect of the suit property are false, erroneous and not binding upon the parties to the suit. During the current settlement the plaintiff tried to raise objection against such wrong entries but the officers of Land and Land Reforms Department did not pay any hid to his objection. When the defendants started to obstruct peaceful possession of the plaintiff over the suit property, he filed the suit for declaration of his right, title and interest over the suit property and permanent injunction. The plaintiff also prayed for a declaration that the finally published R.S. Records of rights in respect of the suit property should be declared to be wrong and erroneous.

(3.) The defendants/respondents contested the said suit by filing written statement. It is ascertained from the case of the defendants that they denied of taking settlement of the suit property from Midnapur Zamindari Company Ltd. by the plaintiff. Specific case of the defendants is that they are the recorded raiyats in respect of the suit property and co-sharers with the plaintiff. They have been possessing the suit property and the Record of rights were correctly published. It is also pleaded by the plaintiff that one Srinibas Mahata filed objection case under Section 44 (1) of the West Bengal Estate Acquisition Act against both the plaintiff and the defendants. The said objection case was allowed and in the said case the plaintiff asserted that the settlement on the basis of registered 'kabulyat' dated 20th February, 1953 was correctly done and both the parties to the suit are in actual possession of the suit property. By amendment of written statement the defendants further stated that the father of the parties took settlement of 80 decimal of land in C.S. Plot No. 260 on 17th January, 1952 in the name of the plaintiff being the eldest son of the father of the parties. At the time of settlement, the plaintiff was a minor and he had no income to pay either one time salami or monthly rent to the said Zamindari Company. At the time of R.S. Settlement original suit plot no. 260 was divided and 80 decimal of land is recorded in the names of the plaintiff and the defendants in respect of R.S. Plot No. 260/507 under khatian of 167 of mouza - 'Dengasole'. Thus, the defendants claimed the suit property by way of inheritance. On the basis of the pleadings, the learned Trial Judge framed as many as nine issues. Parties led evidence, both orally and documentary and on due consideration of evidence on record, the learned Trial Judge decided the issues in favour of the plaintiff and decreed the suit.